While some employers only conduct background checks after offering an applicant a position, in most states, you’re not legally required to do so. Instead, you can often perform these checks at any point in the application process, provided you’ve obtained the person’s written authorization. However, this doesn’t apply to all types of background checks, some of which can only be investigated after a conditional offer of employment.

Employment Law

Employment-related background checks are governed primarily by the Fair Credit Reporting Act, a federal law that requires employers to receive written permission from applicants before hiring a third-party service to run a background check. The law, regulated by the Federal Trade Commission, applies not only to criminal records, but also to credit reports and to reference checks if they include inquiries into a person’s character and not just verification of job titles, salary and dates of employment.

Potential Problems

Even when handled properly, pre-employment background checks can complicate the hiring process. Some small businesses don’t have the financial resources or the time to screen every applicant. In this case, you might get more for your money if you only vet your final choice. In addition, the more you research the candidates, the greater the chance you’ll uncover something you’re not allowed to consider during your evaluation. Some criminal convictions, for example, can’t be used against candidates if they’re not directly related to the position they’re applying for. The more information you have, the more likely it is a disgruntled applicant can claim employment discrimination.

Considerations

Even though federal law allows pre-offer background screenings, certain aspects of the process could get you in trouble. For example, you’ll usually need an applicant’s date of birth to run a thorough background check. While it’s not illegal for employers to ask a candidate’s age, many refrain from doing so to prevent candidates from claiming age discrimination if they’re not hired.

Exceptions

In Hawaii, the Employment Practices Act prohibits employers from considering an applicant’s criminal background before making a job offer. However, employers can conduct a criminal background check after the offer and can withdraw it if the candidate has a criminal conviction relevant to the position.